Sonia Sotomayor Just Sounded a Dire Warning About Marriage Equality

The Supreme Court dealt a blow to the fundamental rights of married couples on Friday in an important and ominous immigration case, Department of State v. Muñoz. Justice Amy Coney Barrett held—over the dissent of all three liberals—that American citizens have no constitutional “liberty interest” in living with their foreign spouses, denying them the most basic protections against arbitrary government discrimination. Justice Sonia Sotomayor’s fierce dissent condemned Barrett’s opinion as, among other things, an unsubtle assault on marriage equality for LGBTQ+ Americans.

On Saturday’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the Muñoz decision and its alarming ramifications for the constitutional right to marry. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: This is an important case about immigration law that’ll be devastating to a lot of binational families. Yet Justice Sotomayor also used her dissent to sound a four-alarm fire about the future of marriage equality. To start, can you talk about this case on its own terms?

Mark Joseph Stern: Sandra Muñoz is an American citizen. She’s married to Luis Asencio-Cordero, who’s a citizen of El Salvador. They have a child together who is also an American citizen. Muñoz and her husband sought a visa so he could live with her in the United States. The State Department denied that visa and refused to explain why. Muñoz sued and prevailed at the 9^th U.S. Circuit Court of Appeals, which held that the Constitution creates a liberty interest for American citizens to live in the U.S. with their immigrant spouses. The 9^th Circuit ruled that the government intruded on that constitutional freedom, and so, at a bare minimum, it had an obligation to give Muñoz a reason for denying the visa.

So how does Justice Amy Coney Barrett’s majority opinion turn this case into an arrow aimed straight at the heart of marriage equality?

Well, to start, the majority ruled against Muñoz. Barrett wrote that, no, you do not have a right to be given the reason for your spouse’s visa denial. The majority could have stopped there, but it didn’t. Instead, for the first time ever, it held that there is in fact no liberty interest under the Constitution for an American citizen “to live with her spouse in her country of citizenship.” The State Department could do anything it wanted because there was no constitutional right at play.

It’s worth noting that the court didn’t even need to get into this discussion of marital rights, correct? Justice Gorsuch has an uncharacteristically restrained, un-Gorsuch-y concurrence saying his conservative colleagues didn’t need to get that far.

That’s exactly right, because the government has already given Muñoz the reason it denied the visa. It gave her what she asked for! Now, that reason is dubious: The government claimed he had gang tattoos, which doesn’t appear to be true, and she contests it. But because it gave her the answer she demanded, this appeal should’ve been over. Gorsuch says, basically, “I don’t understand why the majority keeps going when Ms. Muñoz has already gotten the relief she sought.” She would be free to seek the visa again.

But the majority was hungry to go further, as Justice Sotomayor said in her dissent. The majority wanted to cut back the constitutional right to marry, so it weaponized this case as a cudgel against that right, rather than practicing judicial restraint.

Let’s walk through the Sotomayor dissent, because it reads like an elegy for something that isn’t gone yet. She starts right out of the chute: “The right to marry is fundamental as a matter of history and tradition,” quoting Obergefell. She suggests that the majority is doing something to imperil Obergefell and even breaking a promise it made in the Dobbs decision. What is she mourning?

I think she’s preemptively mourning Obergefell and suggesting that it will be the next casualty of Dobbs. Really, there’s no other way to read it. She points out that in Dobbs, the majority said it was not undermining “the right to marry,” “the right to reside with relatives,” and “the right to make decisions about the education of one’s children.” But the majority’s decision undermines all those rights! It takes away an American citizen’s right to live with their spouse and their children here in the U.S. And in doing so, it sabotages one of the key aspects of the court’s marriage ruling.

Sotomayor talks about how Jim Obergefell and his husband could have stayed in Maryland after they got married there, but didn’t want—they wanted to go back home to Ohio and live together there. So when the Supreme Court struck down same-sex marriage bans, it specifically said that same-sex couples had the right to have their marriages recognized so they could live together in whatever state they wanted. Same thing in Loving v. Virginia: The Lovings could have stayed in D.C., which allowed interracial marriage at the time, after they got married there. But they didn’t want to—they wanted to go back home to Virginia and live as a married couple there. The state wouldn’t let them, so the Supreme Court struck down Virginia’s ban on interracial marriage. Sotomayor says those principles are enshrined in our marriage precedents. And she sends up this flare to say that marriage is not just about a piece of paper; it’s about the constellation of liberties that accompany it. And a big one has always been the right to live together.

Justice Sotomayor seems to zero in on Obergefell for another reason, too—she’s worried the majority’s decision will have a disproportionate burden on same-sex couples. Why is that?

So the majority suggests that if Muñoz wants to live with her husband, she can just move to El Salvador. But for many binational, same-sex couples, that option does not really exist. Because one spouse might live in a place where marriage equality isn’t legal and where homosexuality might even be criminalized. Sotomayor points out that the majority’s rule is effectively discriminating against same-sex couples. She writes that it will punish “those couples who, like the Lovings and the Obergefells, depend on American law for their marriages’ validity.” Look—the justice does not whip out this rhetoric in any low-level case. She is explaining that the majority reached far beyond the facts here to call into question some of the bedrock principles of the court’s marriage jurisprudence to say that the majority is very much open to changing its mind. And is that any surprise? No member of the conservative supermajority joined the Obergefell majority in 2015. It is very much a new court.

It really does raise all the questions we discussed after Dobbs about what substantive due process was meant to protect, right? How families work, how marriages work, where you live, the ability to travel together. Is there any chance Sotomayor is overreacting?

I don’t think she’s overreacting. It’s all too easy to imagine this court overruling Obergefell in a few years and citing Barrett’s decision in this case. The court could easily say, just down the road, that it already called Obergefell into question, and overruling it is the next logical step. I think that’s why Sotomayor also hinges her dissent on Dobbs, pointing to false assurances that the court would overturn abortion rights but go no further. We all knew that was bogus at the time. And remember, Justices Elena Kagan and Ketanji Brown Jackson signed on to this dissent in full. I think all three liberals are ringing this alarm so everyone can see that overturning marriage equality is very much on the table at this Supreme Court.